Article 1, Section 7, Clause 2: Presentment Clause

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

The Presentment Clause outlines the process by which a bill becomes a law. It must be approved by both the House of Representatives and the Senate, and from there the most straightforward path to becoming law is for the President to sign the bill. Thus most laws require the assent of Representatives of the majority of the population, the assent of Senators representing the majority of the states, and the President, as the one who must execute the law but also as one who represents no particular district, but is President of the United States.

The last point should not be overemphasized. Representatives and Senators are expected to faithfully represent the interests of their districts and states, but they are sworn to do so in a way that serves the nation as a whole. They are professionals in the ancient sense of the word, men and women owing allegiance to a creed (the Constitution of the United States) that transcends their duty to their clients.

Matters become less straightforward if the President refuses to sign a bill passed by both chambers of Congress. He must articulate his objects, in writing, when returning the bill to the House where it originated. This is the Presidential veto. The originating House has the opportunity to consider the President’s objections. If they cannot be overcome, the bill must be either abandoned or amended, and in the latter case it must go through the whole legislative process again as if it was a new bill. But if supermajorities consisting of two-thirds of the members of both Houses vote to reject the President’s objections, the bill becomes law without the President’s signature.

The remaining provisions are carefully designed to prevent gaming this system. The President cannot normally kill a bill by ignoring it; if it is not returned to the originating House with the President’s objections within ten business days, it becomes law without the President’s signature. But Congress cannot force a bill to become law by giving the President no time to veto it; if Congress adjourns before the President has time to return the bill with his objections, the bill dies. This is the pocket veto, so called because the President simply pockets the bill until it expires.

One of the Framers, Elbridge Gerry expressed a narrow view of the purpose of the veto: “The primary object of the revisionary check of the President is not to protect the general interest, but to defend his own department.” That is, Gerry seems to have viewed the veto as a protection on the separation of powers. However, the first veto, by George Washington on 5 April 1792, was on constitutional grounds: Washington vetoed an apportionment bill with the objection that it failed to meet Constitutional requirements on apportionment. The first few Presidents after Washington seem to have viewed the veto in the same way, citing Constitutional objections in each case. Only later were bills vetoed on pure policy grounds.

The first override of a veto was not until 3 March 1845, when Congress overrode a veto of a bill that restricted the President’s ability to authorize construction of Coast Guard cutters without explicit Congressional approval. There was not another veto override for a decade.

Seven Presidents never vetoed a bill. At the other extreme, Grover Cleveland vetoed over 400 bills in his first term, of which only two were overridden. Franklin D. Roosevelt vetoed 635 bills, but he served longer as President than any other man.

The courts have been unwilling to consider any creative modifications to the veto power. In particular, they have rejected the line item veto, on the grounds that this violates the separation of powers by allowing the President in effect to legislate. They have also rejected the legislative veto, in which Congress grants certain authority to the President but under the condition that they may forbid individual actions under that authority by simple majorities in both houses.

We will consider alternatives to a line item veto in a future post.

In practice, the veto power has effectively put legislative power in the hands of the President, since he can propose bills to Congress and threaten to veto bills that do not match his policy preferences. However, the prospect of a veto being overridden (which is politically humiliating), and the political cost even of a successful veto (vetoes tend to be politically unpopular), form a significant check on this limited legislative power.